Law Professor Testifies before U.S. Sentencing Commission

On May 27, Washington and Lee Law professor Erik Luna testified before the United States Sentencing Commission on the issue of mandatory minimum sentencing.

The U.S. Sentencing Commission establishes sentencing policies and practices for the federal courts, including guidelines on the appropriate form and severity of punishment for offenders convicted of federal crimes. In his testimony, Luna argued that mandatory minimums should be eliminated because they don't achieve their desired results, and at the same time they compromise the integrity of the criminal justice system.

One of Luna's chief concerns is that mandatory minimums redistribute power in the criminal justice system.

"Mandatory minimums effectively transfer sentencing authority from trial judges to federal prosecutors, who may pre-set punishment through creative investigative and charging practices, producing troubling punishment differentials among offenders with similar culpability," says Luna. Of particular concern, he adds, is the appearance, if not reality, of racial and ethnic disproportionality in criminal justice.

Federal law enforcement is well-intentioned in most cases, Luna readily acknowledges. "But it would be naïve to assume that good faith will prevent the misuse of mandatory minimums."

Mandatory minimums may not fulfill the traditional goals of punishment either, says Luna, as they are indifferent to concerns about proportionality between crime and punishment, and they fail to provide effective deterrence or meaningful incapacitation. Mandatory minimums also raise a series of constitutional issues, from the "trial tax" they impose on defendants who exercise their constitutional rights to the intrusions they make on principles of federalism and the separation of powers doctrine.

More generally, Luna sees mandatory minimums as part of the "the constant expansion of criminal justice systems, through the creation of novel crimes, harsher punishments, broader culpability principles, and heightened enforcement, often in the absence of moral or empirical justification and without regard for statutory redundancy or jurisdictional limitations." He notes that mandatory minimums have contributed to America becoming "the single most punitive Western nation and the world's imprisonment leader."

An expert in criminal law and procedure, Luna is frequently called upon to testify regarding issues of criminal justice. He previously offered testimony before a U.S. congressional subcommittee on the judiciary on the ability of U.S. states to provide legal services to indigent defendants as required by law.

Luna's varied experience includes service as a Fulbright Scholar teaching restorative justice in New Zealand and as a visiting scholar in Germany at the Max Planck Institute for Foreign and International Criminal Law, the world's foremost center for the comparative study of criminal law and procedure. He is also an adjunct scholar with the Cato Institute, a public policy research foundation.